Sabapathipillai «. Vaithialingam.
1938Present: Maartensz and Hearne JJ.
SABAPATHIPILLAI et al. v. VAITHIALINGAM.
163—D. C. Jaffna, 8,708.
Trustee—Action drought—Expiration of office during the action—Right tocontinue action.
A trustee whose term of office has expired during the pendency of anaction brought by him is not entitled to continue the action.
PPEAL from an order of the District Judge of Jaffna.
Hay ley, K.C. (with him Kumarasingham), for second defendant,appellant.
N. E. Weerasooria (with . him Chelvanayagam), for plaintiffs,respondents.
108MAARTENSZ J.—Sabapathipillai v. Vaithialingarti.
March 21, 1938. Maartensz J.—
The plaintiffs as trustees of the Nochikadu Pillaiyar Temple (hereafterreferred to as " the temple ”) brought fhis action to eject the defendantsfrom the temple and to obtain possession of the temple and all the mov-ables and immovables belonging to the temple which were vested in theplaintiffs by an order made on August 2, 1933, in case No. 23,628 of theDistrict Court of Jaffna.
Under the scheme of management approved of by the Court in caseNo. 23,628 the management of the temple was to be under the control ofa Board of five Trustees, one of whom, the present fifth plaintiff, was tohold a hereditary seat on the Board .of Trustees of this temple. Theother trustees were to be elected by the congregation at a general meetingheld as provided for, and were to hold office for a period of three yearsonly.
The first to fourth plaintiffs were elected trustees on or about December1, 1932. This, action was filed on September 24, 1935. The second andthird defendants, the appellants, filed answer on January 15, 1936, inwhich they alleged, among other legal objections, that the term of officeduring which the plaintiffs were elected to serve on the Board of Trusteesexpired on December 1, 1935, and that they could not maintain theaction.
This objection was tried as a preliminary issue and the second and thirddefendants appeal from the order of the District Judge in which he heldthat the plaintiffs are entitled to continue the action as new trustees havenot been appointed and the rights of the parties have to be determined asat the date of the action.
This order cannot be. supported. Even if the principle that the rightsof the. patties must. be. determined at the date of the action is applicable,the trustees whd^have ceasedhold ..office cannot get a- decree for decla-
ration of title apd Gj&ci^ent^Eligahqmy P- Bpnfoi-Bandaet al.' In thecas$ of :Appusint^6' u' BfilasUrijio5,. it laid :dbwn"that the principlethat a case must be decided as at thfe time of the institution of the suitcannot be applied to the case- of an action brought by a trustee wly> hadceased to hold office during the pendency of the action and that themoment he ceased to have that status he could not continue the action tobring it to determination.
There is no provision in the Code under which a trustee who has ceasedto hold office can continue the action. Section 404 of the Code onlyauthorizes the continuance of the action by the persons “ to whom suchinterest has come, either in addition to or in substitution for the personfrom whom it has passed, as the case may require ”. But for this sectionthe action would have to be dismissed. Section 404 of the Code is ineffect substantially the same as Rule 10 of Order XXII. in the IndianCode (vide Civil Procedure Code—Sarlcar, vol. IT., p. 1569). It has beenheld—
(i.) that “ a suit brought on behalf of a mutt by a trustee not properly
appointed can be continued by a properly appointed successor on whom
» (1911) 14 N. L. R. 113.2 (1913) 16 N. L. R.-385.
MAARTENSZ J.—Storer v. Sinthamany Chettiar.
the representation, of the institution has devolved, Order XXII., Rule 10,and not Order XXII., Rule 5 applies to such a case; Ratnam Pillai v.Annamalai Desikar
(ii.) that “ where a trustee dies or retires and another is elected in hisplace, the estate devolves on the new trustee and it is a case of devolu-tion of interest within the meaning of this rule. The new trustee canbe added under Order XXII., Rule 10; Thirumalai v. Aruna Chella0The question which we really have to decide is whether the fifth plaintiffcould carry on the action alone. I am of opinion that he cannot do soas under the scheme of management and the vesting order, the duties oftrustees can only be carried on by the Board of Trustees jointly.
I set aside the order appealed from with costs. This order however,-•does not, subject to the law. with regard to abatement of suits, precludethose persons who claim to have succeeded the plaintiffs as trustees ofthe. temple from applying to the Court for leave, to continue the suitagainst the defendants.
Hearne J.—I agree.
SABAPATHIPILLAI et al. v. VAITHIALINGAM